..::Recognition of Foreign Divorces in UK – The New Law

..::Divorces by Pakistani Nationals Recognition in UK

Pt II of the Family Law Act 1986, will make significant changes in the law relating to the recognition of foreign divorces, legal separations and annulments.

Recognition of foreign annulments is regulated by statute for the first time and, broadly speaking, the rules governing such annulments are brought into line with those dealing with divorces and legal separations.

So far as the latter are concerned with Recognition of Divorces and Legal Separations Act 1971 (RDLSA’) is repealed, together with the amendments to it made by ss.

2 and 16 of the Domicile and Matrimonial Proceedings Act 1973 (‘DMPA’), but the outcome is no mere consolidation.

Nor does the law legislation simply put into effect the recommendations of the Law Commission in its Report No.

137: ‘Private International Law — Recognition of Foreign Nullity Decrees and Related Matters’ (1984).

The government felt unable to accept some of the Commission’s recommendations, notably those which would have somehwat liberalised the approach taken towards the more informal types of divorce such as the ‘bare talaqs’ accomplished under Muslin law in such countries as Saudi Arabia, Egypt, the Gulf States and India.

The main provisions of the 1986 Act relating to the recognition of divorces are described below, with special attention being given to changes in the rules applicable to extra-judicial divorces.

Divorces within the British Islands s.

44(1) provides that no divorce obtained in any part of the British Islands shall be regarded as effective in any part of the UK unless it was granted by a court of civil jurisdiction.

This continues in force the ban on any extra-judicial divorces occurring here, which was first introduced by s.

16(1) of the DMPA 1973, following the decision of Simon P in Qureshi v Qureshi [1972] Fam 173.

Extra-judicial divorces which took place here before 1 January 1974 and which were entitled to recognition under the common law rules applicable at this time are, of course, unaffected.

As one would expect, the validity of any divorce granted by a court in any part of the British Islands must be recognised throughout the UK, unless one of the general rules about refusal or recognition , discussed below, applies (s.

44(2)).

Overseas Divorces The new rules covering the grounds upon which an overseas divorce is entitled to recognition are chiefly found in s.

46.

A key distinction is drawn in this section between divorces ‘obtained by means of proceedings’, on the one hand, and those accomplished ‘otherwise than by means of proceedings’, on the other.

‘Proceedings’ are defined in s.

54(1) to mean ‘judicial or other proceedings’.

One consequence of this is that the decision of the House of Lords in Quazi v Quazi [1980] AC 744 will still be authoritative in holding that divorces obtained by a talaq coupled with the service of certain mandatory notices and a delay of 90 days pursuant to the Pakistan Muslim Family Laws Ordinance 1961 (which is also in force in Bangladesh) would qualify as having been ‘obtained by means of proceedings’ in those countries; ‘other’ proceedings do not need to be quasi-judicial in nature for this purpose.

However, the word ‘proceedings’ is defined no further than this and it will fall to the English courts in future cases to decide exactly what is included.

There are a great many different ways by which couples may get divorced extra-judicially around the world, some merely involving the consent of the parties or an arrangement between themselves and their respective families, some needing no more than an informal unilateral repudiation of the wife by the husband (such as the ‘bare talaq’ of traditional Muslin law) and others requiring only minimal participation by an administrative authority or organ of the state (for further details, see generally Poulter, English Law and Ethnic Minority Customs, Chapter 5).

Probably the most helpful guidance on the proper construction of the word ‘proceedings’ is to be found in the judgments of the members of the Court of Appeal in Chaudhary v Chaudhary [1984] 3 All ER 1025.

The decision itself settled a controversy between three High Court judges over whether a ‘bare talag’ constituted ‘proceedings’ (see Sharif v Sharif (1980) 10 Fam Law 216; Zaal v Zaal (1983) 4 FLR 284 and R v IAT, ex p.

Secretary of State for the Home Department [1984] 1 All ER 488), the Court of Appeal ruling that a ‘bare talaq’ pronounced in Kashmir (a part of Pakistan not subject to the Muslim Family Laws Ordinance 1961) did not entail ‘proceedings’.

As Cumming-Bruce LJ explained (at p.

1026): ‘Apart from the pronouncement by the husband of the talaq, there is no formality, no requirement of any notification to anybody.

No institution of the state, legal or administrative, is involved.

No religious institution plays any part.’ He went on (at p.

1028): ‘If then the divorce has to be obtained by means that can fairly be regarded as proceedings, should pronouncement of a bare talaq be so regarded? Such a divorce is not at first sight obtained by means of any “proceeding”.

It is pronounced.

Pronouncement of talaq three times finally terminates the marriage .

.

.

The pronouncement is a solemn religious act.

It might doubtfully be described as a ceremony, though the absence of any formality of any kind renders the ceremony singularly unceremonious.

It can fairly be described as a “procedure” laid down by divine authority be the inspired text of the Koran.

But neither respect for the divine origin of the procedure nor respect for the long enduring tradition which over the centuries has rendered the bare talaq effective as terminating marriage by the law of Muslim countries necessarily or sensibly should convert the procedure into a proceeding .

.

.

.’ Balcombe J similarly took the view that the unilateral act of one party to the marriage, however formal in its nature and whether or not performed in the presence of witnesses, could not properly be characterised as proceedings.

However, it is in the judgment of Oliver LJ that the requirements needed to constitute proceedings are most elaborately set out.

He stated (at pp.

1030-1): ‘”Proceedings”/must .

.

.

at least bear in the statute a meaning which the word would have in normal speech whereas it seems to me, no one would ordinarily refer to a private act .

.

.

entirely by parties inter se or by one party alone, as a proceeding, even though the party performing it may give it an additional solemnity or even an efficacy by performing it in the presence of other persons whose only involvement is that they witness its performance.

The word would not, in my judgment, ordinarily be used as being synonymous with “procedure” or “ritual” .

.

.

On the other hand, the word does not, I think, necessarily connote publicity; for instance, business transacted at a meeting of a board of directors of a company is universally and properly described as “proceedings of the directors”.

In the context, however, of a solemn change of status, it does seem to me that the word must import a degree of formality and at least the involvement of some agency, whether lay or religious, of or recognised by the state, having a function that is more than simply probative, although .

.

.

it need have no power of veto.’ Oliver LJ then went on to explain that the question is not what sort of ceremony a person has chosen to go through himself to invest a divorce with aadditional solemnity but what are the essential elements generally which result in the marriage being legally dissolved.

In the light of the foregoing it would appear likely that ot only ‘bare talaqs’ but also purely informal consensual divorces will be treated as having been ontained ‘otherwise than by means of proceedings’.

Such consensual divorces are found in many systems of African customary law, but perhaps if of necessity the divorce had to be arranged in the presence of the local chief, involved the return of bridewealth and had to be preceded by formal meetings between the two families concerned these additional elements might be held sufficient to qualify as proceedings.

Consensual divorces are also recognised in Hindu law, Japanese law, Thai law (see, eg, Ratanachai v Ratanachai [1960] CLY 480; Varanand v Varanand (1964) 108 SJ 693) and under customary Chinese law in Hong Kong (see, eg, Lee v Lau [1967] P 14).

The mere facts that such a divorce was put into written form, voluntarily registered with a state official and evidenced by a certificate of authenticity would seemingly not result in it being regarded as obtained by means of proceedings under the 1986 Act.

In Hong Kong, however, under the terms of the Marriage Reform Ordinance 1971 certain consensual divorces of Chinese marriages now entail the parties having to give prior written notice in a prescribed form to a designated public official of their intention to dissolve the marriage.

The official will then interview the parties to ensure that they understand what they are doing and that each of them freely and voluntarily desires to end the marriage.

For the divorce to be legally binding the couple must then sign, in the presence of each other and of two attesting witnesses, a memorandum of agreement which will only have legal effect from the time when it is registered (see Pegg, Family Law in Hong Kong, pp.

79-84).

Such compulsory formal arrangements would certainly appear to constitute proceedings.

On the other hand, despite certain dicta of Lord Scarman to the contrary in Quazi v Quazi [1980] AC 744 (at p.

824), it seems unlikely that a khula, a consensual form of divorce on the initiative of the wife recognised by Muslim law, would count as being obtained by proceedings, even if it was put in writing and attested by witnesses.

The position might well be different, however, if the Khula was obtained in Pakistan or Bangladesh and notices were served under the Muslim Family Laws Ordinance (see Pearl, A Textbook on Muslim Law, pp.

102-8).

Certain religious divorces, whether they are essentially consensual (such as the Jewish get which is accomplished by the delivery of a formal document) or handed down by an ecclesiastical authority (such as that available to members of the Greek Orthodox Church) may qualift if they had to take place at certain well-defined premises and necessarily involved the participation of a religious functionary (see, eg, Peters v Peters (1968) 112 SJ 311; Broit v Broit [1972] SC 192).

By way of contrasts, a divorce, if that is the appropriate term to use at all, which flows automatically from one spouse’s conversion to a different religious faith is clearly not one obtained by proceedings (for an illustration of such an occurrence, see Viswalingham v Viswalingham [1979] 1 FLR 15).

Divorces Obtained by Means of Proceedings — s.46(1) The validity of a divorce obtained in this manner will be recognised if it is effective under the law of the country in which it was obtained and at the date of the commencement of the proceedings either party was habitually resident there or domicile there or was a national of that country.

It will be noted that if domicile is the basis relied upon there is no need for the divorce to satisfy the lex domicilii of each party (if they had different domicles), as was the position under the previous law.

This brings the domicile basis of recognition into line with the other two bases and is a logical reform along lines proposed by the Law Commission.

Divorces Obtained Otherwise than by Means of Proceedings — s.46(2) The validity of such a divorce will only be recognised if the divorce is effective under the law of the country in which it was obtained and on the date it was obtained either each party was domiciled there or one of them was domiciled there and the other party was domiciled in a country under whose law the divorce is recognised as valid and neither party to the marriage was habitually resident in the UK throughout the period of one year immediately preceding that date.

Here the rules are rather more restrictive than hitherto.

There is no longer any scope for recognition if the divorce is obtained in a third country of neither paprty’s domicile, albeit that it is recognised by both their leges domicilli or the country of their common domicile.

Moreover, if only one of the parties has been habitually resident here for the previous twelve months this is sufficient to prevent recognition, whereas under s.16(2) of the DMPA 1973 the habitual residence here of both parties was previously required for the bar to come into operation.

The following justification for tightening up the rules about the recognition of overseas divorces which entail no proceedings at all was given by the Lord Chancellor during the course of the second reading debate in the House of Lords: ‘There are public policy elements here.

Such divorces are informal, arbitrary and usually u nilateral.

More importantly, there is often no available proof that what is alleged to have taken place has taken place at all.

In addition these divorces are almost exclusively obtained by men and therefore discriminate against women.

Finally, particularly where the wife is resident abroad, such divorces provide little or not financial protection for the wife and family .

.

.

One of the aims [of s.46(2)] is to give greater protection to wives residents in the UK whose husbands have obtained an informal divorce abroad.

It would be wrong to deny a wife living here recourse to the protection of our own courts’ (HL Debates, Vol 473, Col 1082).

Comment It is entirely proper that English conceptions of public policy should be brought to the fore here if they relate to human rights, and certain informal types of divorce, most notably the Muslim ‘bare talaq’, do offend against current English notions of sexual equality and natural justice.

On the other hand, customary and religious divorces arranged by mutual agreement do not fall into the same category and merely pose a problem of proof.

So far as the financial protection of wives is concerned, there was a widespread expectation that thiswould no longer be a stumbling block in the process of recognition following the reforms contained in Pt III of the Matrimonial and Family Proceedings Act 1984.

This Act, it will be recalled, plugged a glaring loophole in the law and permitted applications for financial relief to be made for the first time by parties divorced overseas and for orders to be made along the same lines as the Matrimonial Causes Act 1973 provides for those divorced here.

However, the actual terms of s.12(1) of the 1984 Act only authorise such applications where the overseas divorce has been obtained ‘by means of judicial or other proceedings’ so that paties to such divorces obtained more informally are indeed bereft of sufficient financial protection, a point easily overlooked — as in fact it seemed to be by the Lord Advocate himself in the closing speech for the government in the second readings debate on the 1986 Act (see HL Debates, Vol 473, Col 1103).

The restrictive wording of s.12(1) can probably be accounted for by the fact that the provisions of Pt III of the 1984 Act followed very closely the details of the draft bill prepared by the Law Commission and that body clearly anticipated that the word ‘proceedings’ would be given a sufficiently liberal interpretation to include most overseas divorces, whether formal or informal (see Law Commission Report No.

117 (1982), paras 1.1-1.2).

In 1984, by which time the matter had become extremely controversial, the Commission specifically recommended that the legislature should make it plain that a ‘bare talaq’ was included within the definition of ‘proceedings’ (see para 6.11 of Report No.

137), but as already indicated the Government was unwilling to incorporate this solution in the 1986 Act.

The fundamental point here is that the denial of recognition to an overseas divorce entails in each and every case the creation of a ‘limping’ marriage, a consequence so serious for all concerned (including those involved in any remarriage abroad or any attempt to remarry here) that it should only be allowed to occur where absolutely necessary.

If tangential issues of finance can be adequately sorted out in some other way, eg allowing orders for financial relief to be made in the English courts, then this solution is infinitely preferable to an outright denial of the validity of the foreign divorce.

This part of the Lo rd Chancellor’s justification is thus transparently weak and reveals a flaw in the 1984 Act which should have been put right as soon as it was discovered.

Discretionary Refusal of Recognition The force of the argument about ‘limping’ marriaages also applies where a discretion is conferred upon the English courts, as it is by s.51 of the 1986 Act, to refuse recognition to any overseas divorce which already fulfils the basic requirements for recognition.

From a practical point of view it is likely to be s.51(3) and 51(4) of the 1986 Act which are raised before the courts in this connection.

These subsections provide that an overseas divorce may be refused recognition by the English courts in the following three sets of circumstances: (a) ‘in the case of a divorce obtained by means of proceedings, if it was obtained (i) without such steps having been taken for giving notice of the proceedings to a party to the marriage as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken; or (ii) without a party to the marriage having been given (for nay reason other than lack of notice) such opportunity to take part in the proceedings as, having regad to those matters, he should reasonably have been given.’ (Note: These grounds, broadly based on principles of natural justice, are unchanged from s.8 of the RDLSA 1971); (b) ‘in the case of a divorce obtained otherwise than by means of proceedings, if (i) there is no official document certifying that the divorce is effective under the law of the country where it was obtained; or (ii) where either party to the marriage was domiciled in another country at the date when the divorce was obtained, there is no official document certifying that the divorce is recognised as valid under the law of the other country.’ (Note: These grounds are new and attempt to solve the problem of obtaining suitable proof of the divorce and its effectiveness; they may well present difficulties in some countries since under s.51(4) of the official document has to be issued by a person or body appointed or recognised under the country’s law for the purpose of certifying the validity of the divorce.

The English court, however, merely has a discretion to refuse recognition on these grounds and will hopefully be willing to accept expert evidence instead in suitable cases.) (c) regardless of whether or not the divorce was obtained by means of proceedings, where recognition ‘would be manifestly contrary to public policy’.

(Note: This is virtually a replica of s.8(2)(b) of the RDLSA 1971; for examples of use of the public policy ground in recent years see, eg, Kendall [1977] 3 All ER 471 (Bolivian divorce obtained by fraud); Zaal (1983) 4 FLR 284 (Englishwoman divorced in Dubai by ‘bare talaq’ without adequate advance warning or notification).) Transnational Divorces In Fatima v Secretary of State for the Home Department [1986] 2 All ER 32, the house of Lords held under the previous law that a divorce obtained partly in this country (through the pronouncment of a talaq here) and partly in Pakistan (by sending the requisite Ordinance notices there by post) did not qualify for recognition since s.3 of the RDLSA 1971 necessitated the ‘institution’ or initiation of proceedings in the same country as that in which the divorce was finally ‘obtained’.

The wording of the 1986 Act does not contain quite the same requirement and may thus leave open the possible viability of such a procedure.

s.46(1) merely requires one of the parties to have been habitually resident or domiciled in, or a national of, the country in which the divorce ‘was obtained’, at the commencement of the proceedings.

Could it, therefore, be argued in a future case that a talaq was ‘obtained in Pakistan on the strength of the notices being delivered there following their posting in England after a pronouncement of talaq here? The reference in the Act to divorces being ‘obtained’ is, of course, far more apt in relation to proceedings which involve a judicial or administrative agency or authority than in relation to a talaq, but the contention appears just plausible.

However, it is perhaps significant that the House of Lords in Fatima, having drawn attention to the policy rule barring recognition of extra-judicial divorces accomplished within the UK, commented (at p.

36): ‘It would seem contrary to that policy to encourage the obtaining of divorces essentially by post by Pakistani nationals resident in this country by means of the talaq procedure.’ The current position is thus left rather uncertain.

It can certainly be argued that a law which distinguishes very sharply between those Pakistani nationals who can afford to fly to Pakistan to pronounce a talaq and send out the notices there and those whose financial resources preclude such ‘forum-shopping’ is somewhat defective.

However, even if an English court were to hold that a transnational UK-Pakistan talaq ‘was obtained’ in Pakistan, it might still refuse to recognise it on the ground that this would be manifestly contrary to public policy.

Enter your Question here

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s